Abdul Gafoor, J.

The petitioners allege that the 8th respondent in his capacity as the Chairman of Road Construction Committee and Member of the Panchayat Local Council approached them demanding free surrender of their properties where boundary wall and three shop rooms, two of them with RCC roof were newly constructed and requiring the petitioners to demolish 75% of their dwelling house including boundary wall and gate for the purpose of road widening. They could not concede to the request because they would be put to heavy loss by reason of that. Exts. P1.P2 and PS notices show that there was an attempt to construct a road by utilising free surrendered land and only four families were against that. Obviously, the four families referred to in Exts. PI to P3 are of the petitioners. Exts. PI to P3 are not denied by any of the respondents. Itis alleged in the Original petition that "on 20.9.1993 at about 5.30 P.M. a mob under the direction of respondents 8 to 10 trespassed into the properties of the petitioners and demolished their boundary wall and the gates of the petitioners." The people were armed with showels, pick axes, iron rods etc. At that time, the 4th petitioner, an old lady, was in the hospital in connection with ceasaraton operation of one among her daughters. The 1st petitioner made Ext. P4 complaint to the 3rd respondent, the Superintendent of Police about the incident. It is stated that the 3rd respondent had assured him that there need not be any apprehension of any further intrusion by the mob and adequate measures would be taken to ensure that there would be no further unlawful intrusion threatening security of life and property by wanton vandalism. A day after the 4th petitioner gother daughter discharged from the hospital and returned home with ten days old new born baby. Finding that her compound wall had been demolished and dismantled, she also filed a petition before the 4th respondent Sub Inspector of Police as per Ext. P5. The 3rd respondent was also apprised of the situation by Ext. P6. The 4th petitioner had also approached the 4th respondent seeking direction for police protection, describing the happening already taken place. It is alleged in paragraph 8 of the Original Petition that on 23.9.1993 at about 6 A.M. again a frenzied mob under the direction of respondents 8 to 10 came to the site and started demolishing the entire building belonging to the 4th petitioner unmindful of the pathetic entreaties of the inmates who are all women including one among them who had undergone ceasarian operation ten days ago. The mob demolished 80% of the house rendering it unsuitable for the residential purposes. Though information had been given to respondents 3 and 4 by the 4th petitioner as revealed in Exts. P4, P5 and P6, no steps were taken by the police inspite of the assurance. Had any steps been taken, the demolition of the residential house would not have taken place, the petitioners submit. Subsequent to the incident, FIR had been registered but nothing proceeded beyond that. The petitioners submit that law enforcement machinery had failed to provide protection to the properties and persons of the petitioners. Consequent on the demolition of the buildings the Electricity Board Officers disconnected the electrical connection to the shop rooms and the residential buildings. They apprehended that road would be constructed through their properties and over the portion of the land where demolished buildings situated. In the above circumstances, they filed a suit but they did not get any interim injunction. They have approached this Court alleging that their fundamental rights are being violated and seeking direction to respondents 3 and 4 to provide adequate police protection to the petitioners, persons, liberty and life from respondents 8 to 10 and also for a direction to respondents 1 to 10 "to pay adequate damages and compensatory damages etc. to the petitioners". This also seek for a writ of prohibition restraining respondents 5 to 7 and the PWD authorities and Panchayat authorities from embarking on further construction of the road or bridge through the properties belonging to the petitioners.

2. Respondents 1 the State of Kerala, 2, the District Collector, 3, the Superintendent of Police and 4 the Sub Inspector of Police have not filed any counter affidavit. When the first incident took place on 20.9.1983, the 1st petitioner made Ext. P4 complaint on 21.9.1993 before the 3rd respondent, the Superintendent of Police. It is alleged that he had assured the 1st petitioner that there need not be any apprehension of further intrusion by the mob and that adequate measures would be taken. When the 4th petitioner returned from the hospital on 21.9.1993, she noticed the damages to her properties and she filed on the next day i.e., 22.9.1993 a petition, Ext. P5, before the 4th respondent. It is also stated by her that she had filed Ext. P6 on 22.9.1993 itself before the 3rd respondent, Superintendent of Police. It is also averred in the Original Petition that she had narrated the happenings that took place in the petition and that he passed an order directing the Sub Inspector of Police, Kodungallur, the 4th respondent that all necessary steps should be taken to protect the interests of the petitioners. But, the incident which took place on the next day ie., on 23.9.1993 show that no action had been taken. As there is no counter affidavit to controvert these allegations by the respondents 3 and 4, it has to be taken that Exts. P4 to P6 had been submitted to them and they had been apprised of the situation and that they had assured the petitioners that no vandalism would be committed in their properties again. A commission was issued from this Court. The Commissioner has filed a report. Nobody has raised any objection to the commission report. It is reported by the Commissioner that there was demolition of the shop rooms, the residential building of the petitioners and also mat no other buildings than that belonging to the petitioners had been demolished. It is further reported that demolition of the house of the 4th petitioner could have been avoided even if construction of the road was necessary. It is also reported that no habitation is possible unless the house itself was reconstructed and that no re-construction of the house was possible unless the

remaining portion of the house also was demolished.

3. A counter affidavit has been filed by respondent Nos. 8 to 10. The 8th respondent is the member of the local Panchayat. The 9th respondent is a government servant employed in Telephone Exchange and the 10th respondent was a businessman who is no more at present and he, had been deleted from the party array. In their affidavit, existence of Exts. PI to P3 are admitted stating that these were heart felt appeals of the people to surrender land. They submit that they had not directed the mob to demolish the buildings and that they "are not responsible for any of the acts done by the mob". The reaction of the mob and the reason behind the same was highlighted in the news item appeared in Exts. P9 and P10. The respondents 8,9 and 10 are totally innocent of the incidents took place on 20.9.93 and 23.9.93. They say that "we did not participate in the "Sramadan" conducted on the aforesaid dates". These averments show that certain incidents had taken place on 20.9.93 and 23.9.93, the dates mentioned in the Original Petition when the compound wall and shop rooms of the petitioners 1 to 3 and the residential building of the 4th petitioner were demolished. The respondents 8 and 9 and the 10 th respondent at that time being persons interested in the locality, should be aware of the incidents that took place on the said two days even though they might not have persuaded the mob to do so. Thus, by reason of the affidavit of respondents 8 to 10, it is proved that a large mob had on the said two dates demolished the buildings and compound walls belonging to the petitioners, trespassing into their properties and the incident also took place on 23.9.93 after Exts. P4 to P6 had been filed before the police authorities. It is thus proved that the incident on 23.9.93, demolition of the residential building of the 4th petitioner, took place as the police did not act in terms of Exts. P4, P5 and P6 and as they did not render adequate police protection to the petitioners inspite of the vandalism that was done on 20.9.93 being pointed out. Thus, the police failed to render adequate protection to the petitioners life and properties against the crime committed by the mob towards them.

4. The 6th respondent in the original petition has filed a counter affidavit on 16.12,1994. That counter affidavit is filed in CMP No. 29445/94 where he is the 2nd respondent. The 6th respondent in the Original Petition is the Assistant Executive Engineer. It is stated that "no damage will be done to the petitioners as the road will be improved only on the portions surrendered freely for 8 metres width and in other portions ie. adjoining the property of the petitioners the improvements will be done only in the old road or at. available width without touching the property of the petitioners. So, no road will be constructed through the property or the petitioners". It is also averred in paragraph 5 of the counter affidavit that the formation of the road had not yet been started. Thus, the road could have been constructed without affecting the petitioners properties. It is inspite of that the mob had intruded into the petitioners properties and demolished their buildings, though police had been informed in advance as revealed by Exts. P4 to P6. The incident on 23.9.93 took place only because of the inaction on the part of the police.

5. Thus, the petitioners have sustained heavy loss because of the incident on 23.9.93 and because of the inaction on the part of the police to provide adequate protection to the petitioners in the light of the incident took place on 20.9.93 and as the police failed to take into account the complaint made in Exts. P4 to P6. It was on 23.9.93 that the residential building of the 4th petitioner was totally damaged. The Commissioner has reported that no re-construction was possible unless the entire building was demolished. The Commissioner has also estimated the cost as Rs. 4.65 lakhs for reconstruction as in 1993. Certainly by thus time there will be escalation.

6. As it is thus proved that there was trespass by a mob into the petitioners properties, the petitioners ase entitled to a direction to provide adequate police protection for their properties, liberty and life. The respondents 3 and 4 shall examine the situation and render adequate police protection to the petitioners if there is tense situation and ifl there is any chance for trespass into the petitioners properties.

7. As the petitioners have not surrendered their land and there is no acquisition of their properties and as it is stated in the counter affidavit of the 6th respondent that no road had been formed, the petitioners are also entitled for a direction restraining the respondents 5 to 7, the PV%TD authorities and the Panchayat authorities from embarking RQ further construction of the road or bridge through the properties belonging to the petitioners. If anybody violates this direction, the police shall render necessary protection to avert such violation also.

8. The petitioners have also prayed for adequate damages and compensatory damages. In effect they seek compensation for the loss and injury done to them. The demolition took place on 20.9.93 and 23.9.93.

9. The petitioners have the right to protection of to life as guaranteed under Art.21of the Constitution of India. That includes a right to decently live in a residential house, without intervention from others. The expressionlife or personal liberty has been held to include the right to live with dignity. In the case of the 4th petitioner, that right has been violated on 23.9.93 when her residential building had been demolished by a mob. That would not. have taken place if the police had acted taking into account the incident that happened on 20.9.93 and also the complaints made in Exts. P4 to P6. Thus, the police and the State machinery failed to protect the rights to live peacefully and with dignity available to the 4th petitioner. Thus, her right guaranteed under the Constitution had been totally violated because of the inaction on the part of the police machinery under the State. When the fundamental right guaranteed under the Constitution is so nakedly violated because of the inaction on the part of the police and of the State machinery, necessarily such a citizen is entitled for compensation from the State. In the case reported in Lucknow Development v. M.K. Gupta ((1994) 1 SCC 243 [LQ/SC/1993/978] ) the Supreme Court observed as follows:

"The administrative law of accountability of public authorities for their arbitrary and even ultra vires action has taken many strides. It is now accepted both by this Court and English Courts that the State is liable to compensate for loss or injury suffered by a citizen due to arbitrary action of its employees".

The properties of petitioners 1 to 3 were demolished on 20.9.93. At that time, the police could not have prevented it. The petitioners have no case that they had approached the police on any day earlier than 21.9.93. Therefore, the petitioners 1 to 3 cannot claim compensation in respect of the injury that had taken place because of the demolition on 20.9.93. They can approach the appropriate authority seeking damages against the persons who caused such damages.

10. But, the case of the 4th petitioner is not like that. Her residential building was demolished on 23.9.93, after the police had been apprised of the situation prevailing there, in Exts. P4 to P6. It is stated that the police including the 3rd respondent had assured necessary protection and that there would be no further vandalism. But, nothing was done by the police. Police Officers, the respondents 3 and 4, have not denied receipt of Exts. P4 toP6 or the averments of the petitioners that they had been assured protection and that no vandalism would recur. Therefore, it is conclusive that the incident that took place on 23.9.93, demolition of the building of the 4th petitioner, was solely because of the inaction on the part of the police. This violated the fundamental right guaranteed to the 4th petitioner under Art.21 of the Constitution of India and the "administrative law of accountability" of respondents 1 to 4, as held by the Supreme Court in Lucknow Development Authority v. M.K. Go to ((1994) 1 SCC 243 [LQ/SC/1993/978] ), shall extent to compensate the 4th petitioner. This court exercising its power under Art. 226 of the Constitution can definitely grant compensation in terms of the remedy available under Public Law based on strict liability for contravention of the fundamental rights. This Court had considered similar issue in the decision reported in P. Gangadharan Filial v. State of Kerala and Ors. (1995 (2) KLJ 201). This court held as follows:

"It has been well settled that this court can pass an order in exercise of the jurisdiction under Art.226 of the Constitution for payment of money if such an order as in the nature of compensation consequential upon the deprivation of fundamental right. The award of compensation in proceedings under Art.32 by the Supreme Court or under Art.226 by the High Court is a remedy available under public law based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. (Vide Nilabat Behera (Smt.) alias Lalitha Behra v. State of Orissa and Ors. (1993 (2) SCC 746 [LQ/SC/1993/275] ). In the above mentioned decision, reference has been made to all the earlier decisions of the Supreme Court and it was held mat the States liability for contravention of fundamental rights the doctrine of sovereign immunity has no application in the constitutional scheme and is not defence to the constitutional remedy under Art.32 and 226 of the Constitution which enables award of compensation for contravention of fundamental rights when the only practicable mode of enforcement of fundamental rights can be the award of compensation."

11. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen under public law jurisdiction is in addition to the traditional remedies.

The claim for compensation is based on the principle of strictl iability to which the defence of sovereign immunity is not available. It is now well settled that monitory compensation is the appropriate and indeed a remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servant. The State is vicariously liable for their acts. To award compensation is the only suitable remedy to redress the grievances of such victims.

12. Where a man is wronged and endangered, he must have a remedy. A mere declaration of invalidity of an action does not by itself provide any meaningful remedy to aperson whose fundamental right to life has been infringed. In a very recent decision, Sri. D.K. Basu v. State of West Bengal UT 1997 (1) SC 1) [LQ/SC/1996/2231] , the Supreme Court held:

"The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortuous acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Art.21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation hi proceedings under Art.32 or 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Art.21, is an exercise of the Courts under the public law justification for penalizing the wrong doer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen."

13. Following the dicta laid down in the above case the 4th petitioner is necessarily entitled to compensation. The quantum of compensation will depend upon the particular facts of each case and no straightjacket formula can be evolved. In the assessment of compensation the emphasis has to be on the compensatory and not on punitive element The objective is to apply balm to the wounds and not to punish the transgressor.

14. The Commissioner has ascertained the cost for construction of the building of the 4th petitioner as Rs. 4.65 lakhs. No objection is filed to that report. The report was submitted in December 1993. Some escalation in the construction cost might have taken place by this time. The 4th petitioner can necessarily make use of some of the articles from the demolished structure to reconstruct the building. Therefore, the escallation will not adversely affect her. So, the compensation assessed by the Commissioner can be accepted. Accordingly, I direct the respondents 1 to 4 to pay Rs. 4.65 lakhs to the 4th petitioner, as assessed in the commission report which is not objected to by any of them as compensation, to enable her to reconstruct the building.

O.P. is allowed. In the circumstances there will be no order as to costs.